Roe in Troubled Waters

By Melody Barnes | September 2, 2005

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The tone and tenor of the debate surrounding John Roberts’ nomination to the Supreme Court will tell the public where progressives stand on the issue of abortion and the state of reproductive justice in America. Those elected to defend the Constitution must be willing to press Judge Roberts for answers about the fundamental constitutional right to privacy and its implications for women’s rights and well-being.

There are several issues in John Roberts’ record that open the door to this questioning. His role in setting legal strategy for the federal government during the 1990s rise in abortion clinic blockades and intimidation is a good place to start.

In 1991, clinic blockades and violence were on the upswing. Indeed, Operation Rescue tagged that summer the “Summer of Mercy,” and placed a bull’s eye on Wichita, Kansas. There, Operation Rescue’s stated goal was to close abortion clinics using tactics one federal appeals court described as “fear, harassment, intimidation and force.”

As U.S. Marshals and local law enforcement struggled with massive disruptions, making more than 2,600 arrests, the Justice Department – with John Roberts in a key position – was at war with federal district court judge Patrick Kelly. In an effort to enable women to access reproductive health clinics, Judge Kelly employed a federal law intended to protect individuals deprived of their fundamental rights. To stop Operation Rescue from blockading the clinics and physically harassing patients and staff, he later toughened his injunction and ordered federal marshals to help keep the clinics accessible. The Justice Department, with then-Deputy Solicitor General John Roberts at the forefront, told Kelly that he had overstepped his bounds – the massive blockades were a local and state matter, and federal law offered no protection for women trying to enter the clinics.

The Department’s position was disturbing but not surprising. It closely tracked the position taken by the first Bush administration in a related legal case, Bray v. Alexandria Women’s Health Clinic. The Supreme Court had agreed to hear the Bray case after a federal court judge prevented Operation Rescue from blockading clinics in northern Virginia and the Fourth Circuit appeals court approved the decision. Like most other appellate courts, the Fourth Circuit in this case found that blockading the abortion clinics would unlawfully discriminate against women.

As the political deputy in the solicitor general’s office, John Roberts played a critical role in the government’s legal response to the massive blockades in Wichita and in deciding to intervene in the Bray case. In the wake of decisions by the overwhelming majority of federal courts pointing in one direction, John Roberts turned sharply the other way, seeking to persuade the Supreme Court to adopt the narrowest possible interpretation of the statute. While the Justice Department said it was not defending Operation Rescue’s tactics, its interpretation of the law offered women no assistance as they tried to exercise their constitutional rights and access clinics being shut down by blockades and intimidation.

By late August 1991, the Summer of Mercy was over and, in 1993, the Supreme Court adopted the Bush administration’s position in the Bray case. Congress quickly responded with the Freedom of Access to Clinic Entrances Act (FACE), which protects peaceful protest while making it illegal to use force or physical obstruction to intentionally intimidate or physically harm a person providing or trying to access services at an abortion clinic= The law has reduced clinic violence dramatically; nonetheless, the threat to women’s access to legal abortion continues, and the Supreme Court remains at the heart of the battle.

Given this history, progressives on the Judiciary Committee and beyond must rigorously question John Roberts. They must delve into his thinking regarding statutory interpretation, respect for rights deemed fundamental by the Supreme Court – even rights with which he disagrees – and the appropriate relationship between the state and federal government. All of these were at stake in Bray and will be at stake again in cases in the future. Indeed, during the term that begins in October, the Court is set to decide a case that raises several key issues and could severely weaken Roe v. Wade. This is not a Chicken Little fantasy. The threat to reproductive justice is real, and John Roberts must be asked – and should answer – these critical questions.

The debate regarding John Roberts’ nomination is not the time for progressives to falter because they desire a different conversation about abortion. Yes, many of us believe it’s critical to expand the conversation around reproductive rights and press for laws and policies that support the decision to have a family, as well as the decision to have an abortion. Many of us would also like to make abortion less necessary by addressing some of the pernicious societal and policy problems that shape women’s circumstances and reproductive decisions. But, as we advocate for this broad agenda, it is unacceptable to speak timidly about the right embodied in Roe v. Wade. Too much is at stake – the lives and welfare of women, the well-being of their families, and – of great importance – a concept of liberty that includes women as equal and autonomous beings and moral decision-makers.

Roe is in troubled waters, and progressives must not be afraid to wade in.